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On The Auxiliary Evidence In Criminal Procedure

Posted on:2016-03-07Degree:MasterType:Thesis
Country:ChinaCandidate:Z N ChenFull Text:PDF
GTID:2296330461459512Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Whether the substantive evidence is true plays an important role in discerning the truth of a case and filtering the misjudged case. Auxiliary evidence is about the truth and legality of substantive evidence. Unlike the mutual corroboration between substantive evidences, using the auxiliary evidence to prove the substantive evidence is an external proving mode, which can break the chain of evidence that is established by unreal substantive evidences which can corroborate each other. In addition, the rule of auxiliary evidence can promote the formation of substantive trial, which contributes to accomplishing the reform of revolving around the first trial. Unfortunately, both the theoreticians and practitioners do not pay enough attention to auxiliary evidence. Even there are some mistakes in the extant studies. Thus, the study of auxiliary evidence can not only clarify the misunderstandings and fulfill the evidence system, but also discover the fact of case and avoid the misjudged case.The rules of auxiliary evidence vary according to different substantive evidences. When examining the material evidence, such as physical evidence, documentary evidence and electronic evidence, different rules of auxiliary evidence are applied. For example, the physical evidence which is questioned can be proved through the special characteristic or the complete chain of custody. The examination of whether the verbal evidence is true or legal differs from that of material evidence. The examination of whether the testimony is true is mainly about whether the witness has good perception, memory and expression or whether the witness has good character. And the examination about the confession of the accused is mainly about whether the accused is freewill and whether the confession is true. In China, both the lack of theoretical research and the disordered operating practice exist. The theoreticians prefer the substantive evidence and mutual corroboration than auxiliary evidence and external proving mode. Both the lack of theoretical research and the imperfect legislation lead to the practice disordered. In the practice, the chain of custody of material evidence is rather rough, the witnesses do not appear in court and the examination of whether the confession of the accused is legal is formal. Moreover, both the lack of theoretical research and the disordered operating practice bring about many misjudged cases and formal trial, which attribute to the two longstanding defects in our criminal practice, including the judge trusts the evidence presented by the prosecutor and the judge keeps silent when knowing the evidence presented by the prosecutor is illegal.Nowadays, there are so many misjudged cases and the judicial credibility declines, so there is need to improve the auxiliary evidence system in China. The two outstanding prerequisites contain reforming the judicial system which can provide institutional support and formulating perfect evidence legislation which can guide the application of auxiliary evidence rules. In addition, the reform of Chinese auxiliary evidence lies in six aspects. Firstly, improve the chain of custody of physical evidence. Secondly, fulfill the proving method of documentary evidence. Thirdly, all of the special characteristic, the testimony and the chain of custody can be used to prove whether the electronic data and audio- visual material is real. Fourthly, when it comes to the testimony, we should guarantee that the witnesses will appear in court and introduce the rules of auxiliary evidence including character evidence, prior conviction etc. Fifthly, when it comes to the confession of the accused, two aspects should be reformed which include making the best of the audio and visual materials to prove the confession of the accused is obtained legally and introducing the prior conviction as the auxiliary evidence to question whether the defendant is honest. Finally, follow the standard of proof strictly. The standard of proof of whether the confession is legal should beyond reasonable doubt, while the standard of proof of whether other evidence is true or legal just meets preponderance of the evidence.
Keywords/Search Tags:auxiliary evidence, substantive evidence, auxiliary fact, external proving mode
PDF Full Text Request
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